United States District Court, M.D. Pennsylvania
November 15, 2005.
ALLSTATE INSURANCE COMPANY a/s/o GEORGE & GRACE CAPRIOLA, Plaintiffs,
FEDERAL PACIFIC ELECTRIC COMPANY and RELIANCE ELECTRIC COMPANY, Defendants.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Before me is Defendants', Federal Pacific Electric Company and
Reliance Electric Company, Motion for Summary Judgment. (Doc.
18.) The motion is based on two grounds: 1) that Plaintiff,
Allstate Insurance Company ("Allstate"), cannot sustain its
burden of proving that the electric toe space heater alleged to
have caused the fire to their insured's ("George and Grace
Capriola") home was manufactured by Federal Pacific Electric
Company ("FPE") and 2) that Allstate destroyed the home and
therefore the thermostats which governed the space heater, so as
to be guilty of spoliation, to the extend that summary judgment
should be granted to FPE.
Because there is sufficient evidence identifying the heater as
one manufactured by FPE so as to present a genuine issue of
material fact, and because the destruction of the home, and,
therefore the thermostats, does not warrant dismissal, the motion
will be denied. BACKGROUND
On January 2, 2002, the Capriola's summer home in Lake Harmony,
Pennsylvania was destroyed by fire. Fortunately no one was
injured, but the Capriolas suffered extreme damage to their real
and personal property. On the day of the fire, Aloysius P.
Klitsch, the Chief of the Lake Harmony Fire Department, went to
the scene to determine the cause and origin of the fire. He
determined that the toe space heater in the kitchen was the cause
of the fire. He removed the heater from the home on the day of
the fire and, in the process, disconnected the wires from the
space heater. On January 5, 2002, Chief Klitsch turned over the
space heater to Plaintiff's investigator. A second space heater
was taken from the laundry room on January 5, 2002. More wires
were cut in removing the second space heater from the home. On
February 8, 2002, Carl Natale, FPE's fire origin and cause
investigator was permitted to conduct an investigation of the
The space heater from the laundry room can be identified by
labels as having been manufactured by FPE. Although the space
heater from the kitchen contains no markings, from my inspection
at the time of oral argument, it is apparent the configuration of
the two heaters are virtually the same, as are the frames,
including the size, the location and number of holes and the
location of the main electrical cable to each space heater.
Ultimately, Plaintiff caused the destruction of the remains of
STANDARD OF REVIEW
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if
proof of its existence or non-existence might affect the outcome
of the suit under the applicable substantive law. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party
need only establish that it is entitled to judgment as a matter
of law. Where, however, there is a disputed issue of material
fact, summary judgment is appropriate only if the factual dispute
is not a genuine one. See id. at 248. An issue of material fact
is genuine if "a reasonable jury could return a verdict for the
nonmoving party." Id.
Where there is a material fact in dispute, the moving party has
the initial burden of proving that: 1) there is no genuine issue
of material fact; and 2) she is entitled to judgment as a matter
of law. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d Ed. 1983). All doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party, and the entire record must be
examined in the light most favorable to the nonmoving party. See
White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).
The moving party may present its own evidence or, where the
nonmoving party has the burden of proof, simply point out to the
court that "the nonmoving party has failed to make a sufficient
showing of an essential element of her case." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party
bears the burden of proof on a particular issue at trial, the
movant's initial Celotex burden can be met simply by "pointing
out to the district court that there is an absence of evidence to
support the non-moving party's case." Id. at 325. See also
Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa.
1992). There is no requirement that the moving party support its motion with affidavits or other similar materials
negating the opponent's claim. See Celotex, 477 U.S. at 322.
In such a situation, there can be no genuine issue of material
fact, since a complete failure of proof concerning an essential
element of the non-moving party's case necessarily renders all
other facts immaterial.
Once the moving party has satisfied its initial burden, the
burden shifts to the nonmoving party to either present
affirmative evidence supporting its version of the material facts
or to refute the moving party's contention that the facts entitle
it to judgment as a matter of law. See Anderson,
477 U.S. at 256-57. The court need not accept mere conclusory allegations or
denials taken from the pleadings. See Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). In deciding a
motion for summary judgment, "the judge's function is not himself
to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249.
1. The issue of identity of the manufacturers of the toe space
FPE argues that the Plaintiff cannot meet its burden of
presenting enough evidence to establish that whether FPE is the
manufacturer of the space heater is a genuine issue of material
fact. FPE points to the lack of identifying labels or marks; the
fact that FPE has never had a complaint about one of its space
heaters being implicated in a fire; the fact that these space
heaters were only manufactured from 1968 to 1973, whereas the
Capriola home was constructed in 1984 or 1985; the fact that
their were no receipts; that the space heater was similar to
those of other manufacturers; and, that two, one page
instructions from FPE dealing with the installation of its toe
space heaters found in the files of Mr. Capriola's deceased father were inconclusive.
The following analysis leads to the conclusion that this issue
is one of material fact. On observation, the subject space heater
and the FPE space heater from the laundry room are virtually
identical in size, configuration, number and location of holes,
and location of the main electrical cable. Two, one page
instruction sheets regarding the installation of FPE toe space
heaters were found in Mr. Capriola's deceased father's file
dealing with the construction of the home. This raises the
legitimate inference a jury might draw that one was for the space
heater in the kitchen and other for the space heater in the
Therefore I find that viewing the evidence in the light most
favorable to Plaintiff, there are genuine issues of material fact
from which a jury could find that the space heater in question
was manufactured by FPE.
In Schmid v. Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994),
the United States Court of Appeals for the Third Circuit
established the considerations for determining whether to grant
sanctions in the case of the claimed destruction of evidence,
namely, 1) the degree of fault of the party who destroyed or
altered the evidence and 2) the degree of prejudice suffered by
the opposing party. Id. at 79. It is a matter ultimately left to
the discretion of the court. Id. This discretion should be
exercised with a view to choosing "the least onerous sanction
corresponding to the willfulness of the destructive act and the
prejudice suffered by the victim." Id. (quoting Jamie S.
Gorelick, Steven Marzen and Lawrence Solum, Destruction of
Evidence, § 2.1, § 3.16 (1989)). The sanction of dismissal is
"drastic" and a "last resort" only "if no alternative remedy by
way of a lesser, but equally efficient sanction is available." Baliotis v. McNeil, 870 F. Supp 1285, 1289 (M.D.
Pa. 1994) (citing Capellupo v. FMC Corp., 126 F.R.D. 545, 552
(D. Minn. 1989)).
On the basis of the record as it now exists, it is difficult to
find fault with Plaintiff's actions. When requested by FPE, the
Plaintiff made arrangements with defendant for a prompt visit by
FPE's expert to the site. The visit occurred, and there were no
restrictions. Sometime later, the Plaintiff caused the demolition
of the Capriola home. It was after the delivery of the
Plaintiff's expert report that Defendant indicated it wanted to
test the thermostat which, by then, had been destroyed. There
were no attempts to test the thermostat by FPE before it was
destroyed, and it was present during the visit to the site by
FPE's expert. It does not make sense to require the scene be kept
in tact until a party's expert takes time to exhaust all theories
and those in response to the other party's expert. A fair chance
to investigate the scene or product is what is required.
Moreover, Plaintiff had no reason to believe that it should have
preserved the scene or the thermostat. See Baliotis,
870 F.Supp. at 1292.
On the basis of the record before me, I find no fault on the
part of Plaintiff.
Given the opportunity FPE had to inspect the product and the
Capriola home promptly, I find it difficult to determine there
was prejudice. The purpose of the inspection was to determine the
cause and origin of the fire. A later desire to inspect (after
destruction) to combat the other party's cause and origin
determination is not prejudiced in the sense of the Schmid
analysis. On this record, I find no prejudice.
I conclude that FPE is not entitled to dismissal of the case
under the Schmid regime.
The motion for summary judgment will be denied for the
An appropriate Order follows. ORDER
NOW, this 15th day of November, 2005, IT IS HEREBY ORDERED
that Defendants', Federal Pacific Electric Company and Reliance
Electric Company, Motion for Summary Judgment (Doc. 18) is
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